ABA15 v Minister for Immigration
[2016] FCCA 60
•2 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ABA15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 60 |
| Catchwords: MIGRATION – Visa – protection visa – procedural fairness – interpreter. |
| Legislation: Migration Act 1958 (Cth), s.476 |
| Abebe v The Commonwealth of Australia (1999) 197 CLR 510 SZNBX v Minister for Immigration and Citizenship [2009] FCA 1403 Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168 SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 Re: Minister for Immigration and Multicultural Affairs; Ex-parte Durairajasingham (2000) 58 ALD 609 |
| Applicant: | ABA15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 64 of 2015 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 18 December 2015 |
| Date of Last Submission: | 18 December 2015 |
| Delivered at: | Adelaide |
| Delivered on: | 2 February 2016 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Mr P d'Assumpcao |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
The name of the second respondent be amended to read the Administrative Appeals Tribunal.
The application dated 26 February 2015 is dismissed.
The applicant do pay the first respondent’s costs fixed in the sum of SIX THOUSAND, EIGHT HUNDRED AND TWENTY FIVE DOLLARS ($6,825).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 64 of 2015
| ABA15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (‘the Act’) for judicial review in respect of a decision of the Refugee Review Tribunal (‘Tribunal’) dated 22 January 2015. The Tribunal affirmed the decision of a delegate of the first respondent made on 26 September 2013.
The applicant in this matter appeared unrepresented and with the assistance of an interpreter in Tamil and English. The applicant identified one ground in his application which was:
“The decision of the second respondent, the Refugee Review Tribunal Member, was affected by legal error.”
At the commencement of these proceedings, I explained the nature of the proceedings to the applicant. In particular, I explained to him the concept of judicial review and the sort of errors or failings that might allow this Court to find that a jurisdictional error had occurred in the findings of the Tribunal. The applicant indicated through the interpreter that he understood the explanation that was given to him.
The applicant relies on his affidavit dated 26 February 2015. That affidavit simply attaches a copy of the decision record of the Tribunal in his matter.
Background
The applicant is a Sri Lankan male and Tamil who is presently aged 21 years. He comes from North West Sri Lanka and arrived in Australia as an irregular maritime arrival on 29 June 2012. Prior to coming to Australia, he lived in the village of Udappu for his entire life. Udappu was in a predominantly Tamil area, but it was not under the control of the Liberation Tigers of Tamil Eelan (LTTE) during the civil war. The applicant was not a member or supportive of the LTTE, and nor were any members of his family. After completing year 11 in school, he worked as a fisherman on a boat owned by another man who was his boss.
The gist of the applicant’s claim is that on 30 May 2012 he and his boss went fishing without a fishing pass. On their return they were questioned by some army officers. When the officers discovered that they did not have a fishing pass, the applicant says that his boss was assaulted by the army officers, but managed to escape. He claimed that his boss had aggravated the officers by questioning them about why fishing passes were not required by Singhalese fishermen.[1] The applicant claims not to have been injured in this incident.
[1] Court Book (CB) p 108 [30].
The applicant claimed that some days after this incident, the same officers spotted him, chased him, and he was assaulted whilst the officers questioned him about where they might find his boss. They told him that if he did not tell them where his boss was they would kill him.[2] He told the Tribunal that he was badly injured in this incident but did not seek medical assistance. He was given a Panadol by his mother.[3]
[2] CB p 108 [32].
[3] CB p 108 [33].
As a result of this incident, the applicant claimed that he had a genuine fear that if he did not assist the army in locating his boss, that he (the applicant) would be killed. He claimed that because of his Tamil ethnicity, he would not be able to be protected from the army. He claimed that the system of requiring fisherman to have fishing passes in Sri Lanka was something that only applied to Tamils and not fisherman who were Sinhalese.
About five days after the assault on him, the applicant claimed that, at the suggestion of his mother, he went into hiding at the house of his auntie. Whilst he was in hiding at that premises, he claimed that Sinhalese people attended at the house looking for him and asking questions about him. He claimed not to have known these people.[4]
[4] CB p 108 [34].
He further claimed that on 10 June 2012, the Sri Lankan Army (SLA) officers attended at his aunt’s house asking questions about him and indicating that they were searching for him because they wanted to find his boss. There appears to have been no threats directed to the applicant at this time. The applicant claimed that it was his mother who advised him that his only safe option was to travel to Australia. He claimed that if he were to return to Sri Lanka he would not be afforded protection by the authorities because they do not protect Tamil people, and that the Army and Sinhalese people would want to know why he moved to Australia, and that he would have problems because of this. He said that he had departed Sri Lanka to save his life.
Tribunal findings
On the evidence before it, the Tribunal identified that the applicant’s claim amounted to his being a young Tamil male fisherman from North West Sri Lanka who had been pursued by the Sri Lankan Army because his employer was fishing without a pass, and that he fears harm should he be returned to Sri Lanka because he is a failed asylum seeker who departed that country illegally.[5]
[5] CB p 107 [22].
The Tribunal made a number of credit findings against the applicant. Most significantly for the applicant, the Tribunal did not accept his evidence that the incident involving his boss and the events that were said to have followed had actually occurred.[6] In making this finding, the Tribunal found that the applicant’s version of events about these matters was inconsistent and lacked what I will call inherent plausibility.[7] In particular, the Tribunal noted that the applicant made an earlier written claim referring to the occasion on which he claimed to have been assaulted by the SLA that he had been severely beaten and thought he was going to die. This was found to be inconsistent with his description of these events to the Tribunal.[8]
[6] CB p 113 [70].
[7] CB p 108 [37].
[8] CB p 108 [33].
There were numerous other matters that the Tribunal clearly found to lack persuasive force or credibility, including the apparent failure of the SLA to search his aunties’ house; the attendance at her house by the unknown Sinhalese people; the later attendance at his aunties house by the SLA; the apparent inability of the SLA to locate his boss, given that he was apparently a fisherman with a registered boat; his inconsistent version as to whether the SLA knew his name; and, significantly, his inability to describe in any detail the system of fishing passes in his village.
Other matters relied on by the Tribunal in rejecting the evidence of the applicant included the country information that indicated that it is now the Department of Fisheries that regulates fishing licenses and that the Sri Lankan Navy has not issued passes since the end of the civil conflict.[9] The Tribunal accepted that the correct position is that all fishermen are required to have fishing passes regardless of ethnicity. It found that in the current prevailing circumstances, the applicant was likely to be able to return to his work as a fisherman on his return to Sri Lanka.
[9] CB p 112 [61].
In reaching its decision, the Tribunal considered relevant country information relating to Tamils in Sri Lanka; Tamil fishermen; the SLA in Udappu; the illegal departure of failed asylum seekers; the written claims made by the applicant; and, the evidence of the applicant before the Tribunal.
Applicant’s submissions
The applicant submitted that one of the problems with the decision reached by the Tribunal was that during the hearing, his lawyer was unprepared because he had not read through his case properly. I note that he was represented by a registered migration agent at the Tribunal hearing.
The applicant further submitted that his interpreter did not interpret his evidence correctly. He submitted that he had told the Tribunal that the Army had not beaten him, but the interpreter said that the Army had beaten him. He submitted that because the incident happened three years ago, he told the Tribunal that he had been beaten, but he told the Tribunal that it had occurred on a different day because he had forgotten the exact day. The problem appeared to be an alleged error as to the exact occasion on which he had been beaten by the Army. I note in this regard, that the version of events set out in the decision record of the Tribunal[10] appears to be consistent with the version of the same incident referred to in the applicant’s written statement of claims before the delegate.[11] However, the applicant submitted before me that it was only because of the interpreter, that he lost his case. He said that the Tamil interpreter spoke a slightly different type of language to him. I note that the Tribunal hearing record indicates the interpreter was a Tamil/Sri Lankan interpreter who had attained NAATI level 3 qualifications.[12]
[10] CB p 108 [31]–[33].
[11] CB p 73.
[12] CB p 99.
He submitted that he was unable to present any independent evidence to support his claims, and that for this reason, he had difficulty in presenting his case to best advantage before the Tribunal.
Having heard the submissions of the first respondent, the applicant indicated that he did not have any matters he wished to raise in reply.
Respondents’ submissions
Counsel for the first respondent made oral submissions in addition to the detailed written submissions filed. His oral submissions focused on matters raised by the applicant in his oral submissions.
Firstly, the first respondent submitted that the inability of the applicant to satisfy the Tribunal by way of independent evidence was not a matter that established any jurisdictional error on the part of the Tribunal. He submitted that it was well established that it is for the applicant to make his case and cited authorities for that proposition.[13]
[13] Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [187]; SZNBX v Minister for Immigration and Citizenship [2009] FCA 1403 at [29].
With respect to the submission that his lawyer had not represented his case properly, the first respondent submitted that it would be necessary to establish that an important part of the applicant’s claim was not presented to the Tribunal, or that the Tribunal did not have regard to some relevant information. The first respondent submitted that as this was not the case, the complaint about legal representation could not amount to a jurisdictional error.
With respect to the question of the interpreter, the first respondent submitted that the onus was on the applicant to provide the Court with a copy of the transcript and some evidence from a qualified interpreter identifying what parts were materially deficient. There is no evidence of that nature before the Court. To that extent, the first respondent said that this is not a ground that can succeed establishing jurisdictional error on the part of the Tribunal. The first respondent submits that what is required fundamentally is that the applicant must have a fair hearing before the Tribunal. It submits that even if there was an error in the interpretation, it would need to go to a material point, and that even on the submission of the applicant before me, the error identified does not do so.
In its written submissions, the first respondent submits that the application as filed does not identify any jurisdictional error on the Tribunal’s part. It submits that in the absence of any proper particulars, the application must be dismissed but that in any event, a review of the decision of the Tribunal does not reveal any jurisdictional error. It further submits that the findings of the Tribunal were substantially based on credibility findings which it is well established are entirely a matter for the Tribunal. It submitted that generally speaking, even where there was an erroneous finding against the credit of an applicant, this would not be sufficient to constitute a jurisdictional error.
The first respondent submits that all of the findings of fact made by the Tribunal were open to it on the evidence, and that its conclusion was not unreasonable, irrational or illogical. It submits that there was no procedural unfairness in the proceedings and that a proper reading of the Tribunal’s decision shows that it dealt comprehensively with each of the applicant’s claims. It submits that there was no legal error, failure to take into account any relevant matter, or reliance of any irrelevant matter when considering the applicant’s claims.
Consideration
The Tribunal did not fall into jurisdictional error because the applicant was unable to provide some form of corroborating evidence or witness statement to support his claims. In that respect, the applicant was in no different position to many applicants appearing before the Tribunal. The inability to call any corroborative evidence did not work against the applicant to make the Tribunal proceedings procedurally unfair. The Tribunal did not proceed on the basis that the applicant’s case must fail in the absence of corroborative evidence. It considered the claims of the applicant on their merits. The applicant was afforded the opportunity to give evidence, his written claims were considered, and he was represented by a migration agent.
As far as the criticism made by the applicant, that his representative was not properly prepared, is concerned, the applicant has not identified any material in support of his claim that was not presented to the Tribunal. Nor, beyond that bald assertion, has he demonstrated any manner in which his representation was deficient. I do not accept that his complaint about his migration agent establishes any form of jurisdictional error.
I find that the applicant’s complaint about the alleged deficiency of translation does not establish jurisdictional error on the part of the Tribunal. There is no evidence before me to establish that there was such a deficiency. The applicant bore the onus of placing material before this Court to demonstrate any material errors.[14]
[14] Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168 at [18].
Even if the applicant had been able to demonstrate a deficiency in that aspect of the translation of his evidence of which he complains, it would not have been sufficiently material to have caused a miscarriage in the decision making process of the Tribunal. The findings against his credit, and as to the implausibility of his evidence, were not simply based on the strong reservations the Tribunal had about the chronological reliability of his account, but rather whether any of the incidents of which he had complained had occurred at all.
Of course, there is no requirement for the purposes of procedural unfairness that the mistranslation complained of had a causal connection to the ultimate conclusion,[15] but I am satisfied that even if the mistranslation did occur, the course of the hearing was not made unfair as a result of it. The applicant identified a single instance of mistranslation. He does not complain of a frequently recurring problem that had the effect of preventing him from giving evidence on matters of significance involving issues that might have materially affected the way in which the Tribunal approached his evidence. As the first respondent submits, ultimately the question comes down to whether the applicant had a fair hearing.[16] I am satisfied that the hearing accorded to the applicant was procedurally fair.
[15] SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 at [67]-[69].
[16] SZRMQ ibid at [24].
Findings of credit are a matter for the Tribunal[17] and in this case the findings were open to it. There was nothing illogical, unreasonable, irrational, or plainly unjust about the manner in which the Tribunal approached its task or the findings it made. The Tribunal did not fail to take into account any relevant consideration and nor did it fail to take into account any relevant matter.
[17] Re: Minister for Immigration and Multicultural Affairs; Ex-parte Durairajasingham (2000) 58 ALD 609 at [36].
The Tribunal properly considered and made findings of fact as to whether the applicant was owed protection obligations and found that there was not a real chance of the applicant facing persecution by reason of his ethnicity or membership of a particular social group.[18] It found on the basis of country information and the circumstances of the applicant, that there was no real chance that he would face serious harm for a convention reason as a failed asylum seeker.[19] It properly considered whether complimentary protection obligations were owed to the applicant and was not satisfied that there were substantial grounds for believing that the applicant would face harm of any kind on return to Sri Lanka as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka.[20]
[18] CB p 113.
[19] CB pp 115-116.
[20] CB pp 116-117.
Having considered the decision record of the Tribunal, the matters put in evidence before the Tribunal, and the submissions of both parties, I am not able to find that there was a jurisdictional error in the decision of the Tribunal to affirm the decision of the delegate in this matter.
Accordingly, I make the orders to be found at the beginning of these reasons.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Associate:
Date: 2 February 2016
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